SCVG and KLD (No 2) - [2015] FamCA 687

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO 2)

[2015] FamCA 687

FAMILY LAW – COSTS – whether any order for costs should be made in a parenting case. Whether, if such an order should be found to be justified, it should be on some indemnity basis. Father found to have acted unreasonably as a litigant notwithstanding mother not successful in obtaining order for father’s complete exclusion. Father’s conduct exacerbated the litigation causing mother’s costs unnecessarily. Indemnity costs awarded but as to 50 per cent.

Family Law Act 1975 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Hawkins and Roe [2012] FamCAFC 77
I and I (1995) FLC 92-625
Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143
Munday v Bowman (1997) Fam LR 321 at 322
Prantage and Prantage (2013) FLC 93-544
Younghanns and Younghanns (2000) FLC 93-029

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

20 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Cronin J

SUBMISSIONS RECEIVED FROM

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Macphillamy's Solicitors

Orders

That the father pay 50 per cent of the costs of the mother on an indemnity bases at the rate set out in the costs agreement under which the mother had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.
That the said costs referred to in paragraph 1 be by agreement and failing agreement as assessed by a registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR COSTS JUDGMENT

The issue before me is whether Mr SCVG should pay the costs (or some of them) to Ms KLD for the costs she has incurred and if so, how that should be determined.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear his or her own costs. If however, the Court is of opinion that there are circumstances that justify it in so doing, subject to the considerations to which I shall turn below, the Court can make such order as it considers just.
The extra considerations are set out in s 117(2A) and the applicable rules of court. There are three other sub-sections but they are not relevant here.
Section 117(2A) requires the Court in considering what if any order should be made, to have regard to a number of matters to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SCVG and KLD (No 2)

Details

AGLC: SCVG and KLD (No 2) [2015] FamCA 687
Case: [2015] FamCA 687
Decision Date: 20 August 2015

CaseChat Overview and Summary

In SCVG and KLD (No 2), the Family Court of Australia, constituted by Cronin J, considered an application for costs following earlier proceedings between the father and the mother. The dispute concerned the allocation of responsibility for the mother's legal costs incurred during a specific period of litigation.

The central legal issue before the Court was the extent to which the father should be ordered to contribute to the mother's legal costs. Specifically, the Court was required to determine the basis and quantum of any costs order, including whether the costs should be assessed on an indemnity basis and what expenses would be covered.

Cronin J reasoned that an order for indemnity costs was warranted given the circumstances of the case. The Court applied the principles governing costs orders in family law proceedings, considering the conduct of the parties and the overall justice of the matter. The order reflected a significant contribution by the father to the mother's legal expenses, encompassing her solicitor's fees as per her costs agreement and associated disbursements, for the period from 1 January 2015 until the finalisation of costs submissions.

The Court ordered that the father pay 50 per cent of the mother's costs on an indemnity basis, as defined in paragraph 1 of the orders. These costs were to be agreed between the parties, or failing agreement, assessed by a registrar.

Orders

Orders of the court

That the father pay 50 per cent of the costs of the mother on an indemnity bases at the rate set out in the costs agreement under which the mother had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.

That the said costs referred to in paragraph 1 be by agreement and failing agreement as assessed by a registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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